UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31154
Summary Calendar
LAWRENCE HUTCHIN,
Plaintiff-Appellant,
VERSUS
AMERICAN TOBACCO CO.; BROWN & WILLIAMSON TOBACCO CORP.,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
(92-CV-1934)
April 18, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Lawrence Hutchin (“Hutchin”) comes to this court
asking that we ignore a holding by a previous panel and reverse the
district court’s order granting summary judgment to the defendant-
appellees so that his claim against the appellees for failure to
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
warn his now deceased mother of the dangers of their loose tobacco
products may proceed. Hutchin brings a failure to warn claim under
the Louisiana Products Liability Act (“LPLA”) and asserts that the
appellees had a duty to warn his mother of the dangers of loose
tobacco. We cannot overrule a panel decision by this court except
as an en banc court, see, e.g., Oncale v. Sundowner Offshore
Servs., Inc., 83 F.3d 118, 119 (5th Cir.), petition for cert.
filed, 65 U.S.L.W. 3432 (U.S. Dec. 16, 1996) (No. 96-568), and
following Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168 (5th
Cir.), cert. denied, 117 S. Ct. 599, 136 L. Ed. 2d 526 (1996), we
affirm.
Manufacturers may be liable for failure to warn of dangers in
their products under the LPLA, but they have no duty to warn under
the LPLA when “[t]he product is not dangerous to an extent beyond
that which would be contemplated by the ordinary user or handler of
the product, with the ordinary knowledge common to the community as
to the product’s characteristics.” La. Rev. Stat. 9:2800.57(B)(1).
This court has previously held that the health risks of
smoking have long been common knowledge and has affirmed summary
judgment for claims alleging a manufacturer’s duty to warn of the
dangers of smoking. See Allgood, 80 F.3d at 172 (“Like the dangers
of alcohol consumption, the dangers of cigarette smoking have long
been known to the community”); see also Roysdon v. R.J. Reynolds
Tobacco Co., 849 F.2d 230. 236 (6th Cir. 1988). Given such, the
appellees had no duty to warn of the dangers, and we AFFIRM the
district court’s order.